ROYAL EXCHANGE ASSURANCE v. SALIFU KOJO AND OTHERS

JUDGMENT OF AMISSAH J.A.

The plaintiffs, an insurance company, brought an action for a declaration under section 10 (3) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), that they were entitled to avoid a policy of insurance issued by them to the first defendant on the ground that it had been obtained either by non-disclosure of material facts or by representations of facts which were false in a material particular. Further or in the alternative they sought a declaration that while the vehicle in respect of which the policy was taken, namely, vehicle No. AS 7394 was registered and or used as a passenger vehicle, the policy was inoperative or void. Aboagye J. declined to make the declarations asked for and dismissed the plaintiffs' claim. The aggrieved plaintiffs now appeal to this court alleging errors on the part of the trial judge in arriving at his conclusion.

The case was originally initiated against the first defendant, Salifu Kojo, alone. The writ was issued on 2 October 1970. The statement of claim which followed was terse and pointed. Stating that the plaintiffs were an insurance company carrying on business in Ghana and that the defendant was a transport owner, it went on to state that in the year 1967 the plaintiff entered into a contract of insurance with the defendant in respect of a Bedford vehicle registration No. AS 7394 issuing to him in respect of this contract policy No. C.V.5951/RG. The statement of claim then dealt in one short paragraph with the plaintiffs' cause of complaint. That was paragraph (3) which stated that:

"The defendant in obtaining the said policy represented to the plaintiffs that the said vehicle was one for the carriage of goods whereas in actual fact the same was licensed and used for the carriage of passengers."

The first defendant denied making the alleged representation.

Apparently, the incident which immediately precipitated the plaintiffs' action was an accident occurring on 2 May 1970, in which the first defendant's vehicle was involved. Ibrahima Mahama Kuku-Na and Yakubu Haruna who claimed to have been riding in another vehicle, registered No. AN 150, also owned by the first defendant, alleged that they suffered injuries through the accident with the vehicle in dispute. They had begun an action for damages against the first defendant, which they eventually won. But meanwhile, they asked to be joined as parties to the action now before us presumably in order to secure any damages rec